McGinn v Australian Information Commissioner (No 3) (2024, FCA)

by David Markey Yates

FEDERAL COURT OF AUSTRALIA McGinn v Australian Information Commissioner (No 3) [2024] FCA 1271
File number:	NSD 1070 of 2024
Judgment of:	YATES J
Date of judgment:	4 November 2024
Catchwords:	PRACTICE AND PROCEDURE – application to set aside a judgment
Cases cited:	McGinn v Australian Information Commissioner (No 2) [2024] FCA 1196
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	10
Date of hearing:	4 November 2024
Counsel for the Applicant:	The applicant did not appear
Counsel for the Respondent:	Mr H Rogers
Solicitor for the Respondent:	Australian Government Solicitor

ORDERS

NSD 1070 of 2024

BETWEEN:	SOPHIA MCGINN Applicant
AND:	AUSTRALIAN INFORMATION COMMISSIONER Respondent
ORDER MADE BY:	YATES J
DATE OF ORDER:	4 NOVEMBER 2024

THE COURT ORDERS THAT:

1. The interlocutory application filed 17 October 2024 seeking relief under r 39.05 of the Federal Court Rules 2011 (Cth) be dismissed.

2. The applicant pay the respondent's costs of and incidental to the interlocutory application.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

YATES J:

1 On 14 October 2024, I made orders dismissing two interlocutory applications filed by the applicant: McGinn v Australian Information Commissioner (No 2) [2024] FCA 1196 (Reasons 2). The first interlocutory application sought a stay of the proceeding pending a foreshadowed appeal in the High Court. The second interlocutory application sought my disqualification from this proceeding and any other proceeding in which the applicant is a party.

2 In Reasons 2, I noted (at [8]) that the applicant had elected not to appear at the hearing of the two interlocutory applications. Despite that fact, I determined each interlocutory application substantively, rather than dismissing them for want of appearance.

3 On 17 October 2024, the applicant filed another interlocutory application (the new interlocutory application), seeking an order in these terms:

To set aside judgments on 14/10/24 per r39.05(a) as they were made in the absence of the Applicant.

4 The new interlocutory application was listed for hearing today. Once again, the applicant has elected not to appear.

5 On Friday, 1 November 2024 at 4.44 pm the Court received an email from the applicant, relevantly stating:

I will not attend the hearing on Monday because it is ultra vires to list my application for hearing without direction orders for the parties to make submissions.

Should Justice Yates dismiss the application without parties' submissions, I will appeal the decision.

Should Justice Yates dismiss the application with respondent's oral submissions, I will apply set-aside 'in my absence'.

6 The applicant's reasons for not appearing at the hearing of the new interlocutory application are difficult to understand. The purpose of today's listing was to enable the applicant to move on her new application and to make submissions in support of it. The Court has not denied her the opportunity to make submissions. She has denied herself that opportunity by, once again, choosing not to appear. I will determine the new interlocutory application substantively.

7 Turning, then, to the substance of the new interlocutory application, the applicant appears to be under the misapprehension that any order made against her in an application she has brought, when she chooses not to appear at the hearing of the application, can be set aside for the asking. That is not the case.

8 The applicant's deliberate decision not to appear when the two interlocutory applications were heard on 14 October 2024 is sufficient reason to dismiss the new interlocutory application. Another reason is that there does not appear to be any matter supporting either of the two earlier interlocutory applications that was not considered at the time that the orders dismissing them were made.

9 There is no principled basis on which the orders made on 14 October 2024 should be set aside.

10 The interlocutory application filed on 17 October 2024 will be dismissed, with costs. The applicant has brought the respondent to court today needlessly.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Yates.

Associate:

Dated: 4 November 2024